Special Bulletin 28 — July 2012
King v The Queen [2012] HCA 24
Directions on dangerous driving
The significance of this decision is that a majority of the High Court held that dangerous driving is not a species of negligent driving and that the decision in R v Buttsworth [1983] 1 NSWLR 658, to this effect, is erroneous. It was held that dangerous driving is based upon the risk of danger posed to other persons and not upon the degree to which the driving falls short of the standard of care owed to other road users. Therefore, directions on dangerous driving, particularly where it is an alternative to manslaughter, should avoid any reference to degrees of negligence or an evaluation of the breach of duty of care. It follows that counsel should not be permitted to address the jury in such terms.
The appellant appealed against his convictions for culpable driving causing death contrary to s 318(1) of the Crimes Act 1958 (Vic). That Act provided for an alternative verdict of dangerous driving causing death contrary to s 319(1) where the jury were satisfied that the accused was not guilty of the offence under s 318(1). An offence under s 318(1) carries a maximum penalty of imprisonment for 20 years whereas an offence under s 319(1) carries a maximum penalty of imprisonment for 5 years.
For present purposes, the offence under s 318(1) can be equated in this State with the offence of manslaughter by gross criminal negligence arising from the use of a motor vehicle. The offence under s 319(1) can be equated with an offence under s 52A of the Crimes Act (NSW) in relation to occasioning death by dangerous driving.
The appellant argued that the directions given in respect of the dangerous driving offences were erroneous to such a degree that they would have led the jury to consider that the alternative offence to be less serious than it was and, hence, to misunderstand the relationship between the two offences. In effect, the argument was that the jury might have been led to convict the appellant of the culpable driving offences because they may have thought that the offence of dangerous driving was insufficiently serious to adequately reflect the circumstances of the case.
The majority of the High Court (French CJ, Crennan and Kiefel JJ) dismissed the appeal. The minority (Heydon and Bell JJ) would have allowed the appeal, quashed the convictions for culpable driving under s 318(1) and substituted verdicts of guilty of dangerous driving under s 319(1).
Section 318(1) relevantly states that a person drives a vehicle “culpably” if he drives:
negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case.
After stating the statutory element of the offence, the judge added, at [15]:
As this is a criminal case it is not enough that his driving was merely negligent to a small degree, which is often in the civil cases of this court, people are negligent. It must be so negligent that in your view he deserves to be punished by the criminal law.
In respect of the difference between culpable driving and dangerous driving the judge said, at [18]:
There are two important differences between the offence of culpable driving causing death, and dangerous driving causing death that reflect the fact that the offence of culpable driving causing death is a more serious offence. First, the Crown must prove beyond reasonable doubt that the accused drove in a way that significantly increased the risk of harming others. There does not have to be a high risk of death or serious injury. That is only a requirement for culpable driving causing death by gross negligence. And secondly, unlike the offence of culpable driving causing death by gross negligence, in relation to the offence of dangerous driving causing death the Crown does not have to satisfy you that the driving is deserving of criminal punishment. The second element will be met as long as you find that the accused drove in a speed or manner that was dangerous to the public. [Emphasis added.]
It was this direction that formed the basis of the appellant’s argument which asserted that the two emphasised passages were erroneous and had the effect of minimising the seriousness of the dangerous driving charges.
This direction was given before the decision of the Victorian Court of Appeal in R v De Montero (2009) 25 VR 694; (2009) 198 A Crim R 68 that sought to clarify the distinction between the offence of culpable driving and that of dangerous driving. All members of the High Court were of the view that the court in De Montero was in error in stating that the offence of dangerous driving required that the manner of driving created a “considerable risk of serious injury or death to members of the public” as this was not an element of the offence: at [46]; Bell J at [74]. There was also agreement that there was no warrant for importing the concept of “deserving of criminal punishment” into a consideration of dangerous driving whether or not it was appropriate to use it in explaining culpable driving: at [48]; Bell J at [74].
However, the majority of the High Court, Bell J dissenting, held that De Montero was erroneous insofar as it suggested that dangerous driving was based upon an element of negligence so that the offence was determined by the degree to which the driver had breached a duty of care to other road users. In the opinion of the majority, the offence was based upon a consideration of the risk of harm resulting from the manner of driving. French CJ, Crennan and Kiefel JJ, in a joint judgment, held at [44]–[46]:
- 44.
The Court of Appeal in De Montero erred in treating dangerous driving as a species of the genus of criminal negligence. That error gave rise to the further error that a jury should be directed, in relation to dangerous driving causing death or serious injury, that it must involve negligence deserving of punishment by the criminal law. As discussed earlier in these reasons, the concept of “negligence deserving of punishment by the criminal law” had its origins in attempts by the common law to set a threshold for the level of criminal negligence necessary to establish manslaughter per infortunium. It was transposed to the offence of manslaughter under the Criminal Codes of Queensland and Western Australia and, by the decision of this Court in Callaghan, to the offence created by s 291A of the Criminal Code (WA).
- 45.
Despite its pedigree, the further transposition of that form of direction to the offence of culpable driving causing death under s 318 of the Crimes Act and similar offences in other States and Territories of Australia is questionable. It assumes that the jury understands the concept of negligence sufficient to ground civil liability. In Buttsworth the common law principle that criminal negligence differs in degree from civil negligence mutated into the proposition that “[n]egligence in the criminal sense is … a different concept from negligence in civil law.” In any event, the direction has no role to play in relation to the offence created by s 319, which is concerned ultimately with the risk creating characteristics of the speed or manner of driving of the accused.
- 46.
The Court of Appeal in De Montero considered that the level of risk necessary to support the offence of dangerous driving under s 319 existed if an ordinary or reasonable person in the situation of the driver would recognise the manner of driving as involving an appreciable risk of serious injury or death to other users of the road. Dangerous driving was said to involve “a serious breach” of proper driving standards, which exceeded the everyday lack of care sufficient for a civil negligence claim, but which fell short of the gross negligence required for culpable driving. The formulation of the requisite level of risk rested on the premise that negligence is an element of the offence under s 319. The risk of harm, on the approach taken by the Court of Appeal, was to be assessed according to whether and to what extent the driver had breached a duty of care. That approach was erroneous. It may be that in many if not most cases dangerous driving is a manifestation of negligence in the sense of carelessness. It may also be a manifestation of deliberate risk-taking behaviour. It may be that in some circumstances where particular attention is required to the road and to other road users, momentary inattention will result in a manner of driving that is dangerous within the meaning of the section. The assessment of whether the manner of driving was dangerous depends on whether it gave rise to the degree of risk set out by Barwick CJ in McBride and adopted by the plurality in Jiminez in relation to s 52A of the Crimes Act 1900 (NSW). That is, the level of risk which should inform a trial judge’s direction to a jury in respect of the offence under s 319. [Footnotes omitted.]
During the course of its reasons, the joint judgment stated, at [38]:
- 38.
The ordinary meaning of “dangerous” is “[f]raught with or causing danger; involving risk; perilous; hazardous; unsafe”. It describes, when applied to driving, a manner or speed of driving which gives rise to a risk to others, including motorists, cyclists, pedestrians and the driver’s own passengers. Having regard to the ordinary meaning of the word, its context in s 319 and the purpose of s 319, as explained in the Second Reading Speech, negligence is not a necessary element of dangerous driving causing death or serious injury. Negligence may and, in many if not most cases will, underlie dangerous driving. But a person may drive with care and skill and yet drive dangerously. It is not appropriate to treat dangerousness as covering an interval in the range of negligent driving which is of lesser degree than driving which is ’grossly negligent’ within the meaning of s 318(2)(b) of the Crimes Act. The offence created by s 319 nevertheless takes its place in a coherent hierarchy of offences relating to death or serious injury arising out of motor vehicle accidents. It is not necessary to that coherence that the terms of the section be embellished by reading into them a requirement for proof of some species of criminal negligence. [Footnotes omitted.]